Act II: Slaying the health care legislation

March 23, 2010

The question with the passage Sunday of Democratic health legislation now becomes: Who will arrive first to slay this monster, the voters in November or the U.S. Supreme Court?

Beyond its many policy flaws, the legislation raises some serious constitutional problems that could send the high court into unexplored territory. Can, for example, the federal government force you to buy health insurance? Put aside questions about the wisdom of this coercion; we're told it's required because unless the healthy who are uninsured by choice are forced to subsidize everyone else, the entire plan will fall apart.

But the constitutional question remains. Can the federal government make you buy a specific good or service? Smarter minds than mine claim this is the first time in history that the federal government has enthroned itself with such power. Plaintiffs will line up to file court challenges against this and other constitutional issues raised.

All kinds of analogies are dragged forth to rationalize this unprecedented power. The most frequent is: States, including Illinois, require you to buy car insurance. It's not quite the same, though. Driving a car is optional; it's a choice you make. Hardly so with mandated health insurance. There's no way you can escape it; the Internal Revenue Service will hunt you down and fine or jail you.

The other constitutional problem is the fact that this health bill is the creature of Washington, not the states. The bill's proponents will find this old-fashioned concern to be quaint but irrelevant. But I would remind them of the 10th Amendment : "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Where does the Constitution delegate this power to Congress?

The bill's supporters find it under the preamble's "general welfare" clause and

Article I. It's a stretch. Have the courts ever upheld Washington's authority to require engagement in a specific economic activity. I can't find any precedent, but I'm not a lawyer. As far as the "general welfare" provision goes, where do we draw the line? Fines for not eating organic foods?

More than 30 states are pondering laws that would exclude them from participation in this federal health care program. A constitutional crisis could be in our future.

The debate is hardly over, politically or judicially. If the Senate does not sheepishly confirm the House-passed amendments to the legislation, the Senate ironically (and we too) will be stuck with its original flawed bill. If the Senate changes anything in the House amendments, it goes to conference committee, to battle it out.

But whatever happens from here on out, the country is stuck with one version or another, and both versions are racked with constitutional issues. It invites this scenario: A lower federal court could issue an injunction to put the act on hold to hear the constitutional issues. And the Supreme Court could take the case more directly with a writ of certiorari, a request for the court to hear an appeal.

Then will come the debate over "activist" courts. Would the court dare to strike down such a nation-changing law, thwarting what Democrats (laughably) will claim is the "will of the people" (as represented by them). Yes, it would. The precedent is the court's disembowelment of some of President Franklin Roosevelt's New Deal programs. Roosevelt was so upset that he tried to pack the court with his minions, which was too much even for the Democratic-controlled Congress.

If this is our future, watch for liberals to rail against activist courts and conservatives to praise the courts for their intercession. Liberals often justify high court intercession in policy matters to defend the minority against the "tyranny of the majority." Now the tyrannical Democratic majority in Congress has steamrolled the minority. And in so doing, ironically, has steamrolled the American majority.

Everything now is turned on its head. As Ollie said to Stan: "Well, here's another nice mess you've gotten me into."

Dennis Byrne is a Chicago-area writer and consultant. He blogs at ChicagoNow.com